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  4. 15 April 1997

Judicial Independence

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SpeakersSaffin The Hon Janelle
BusinessAdjournment

JUDICIAL INDEPENDENCE

The Hon. JANELLE SAFFIN [6.00 p.m.]: I support the principle and the practice of judicial independence. Yesterday the chief justices of the States and Territories issued a declaration of principles on judicial independence. The declaration will be instructive. In fact, it should be mandatory reading for all members of Parliament, including all premiers - particularly Mr Borbidge, the Premier of Queensland, who appears to have attended the same political induction course as Sir Joh Bjelke-Petersen, the former Premier of Queensland. Mr Borbidge appears to eschew not only the practice but also the principle of judicial independence. Many people profess the principle, but fall down on the practice. It is important to embrace both. Judicial independence is entrenched in the New South Wales Constitution. The principle is fundamental to our system of government - that is, the separation of powers doctrine - and we should rally to protect it. It is in our interests to foster and to defend the
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separation of powers doctrine, which includes the independence of the judiciary. The Executive and the Legislature should not undertake any action - by legislation, policy or spurious comment - that causes public damage to the judiciary, thus eroding its independence.

The Hon. D. F. Moppett: There is nothing wrong with robust criticism of its decisions.

The Hon. JANELLE SAFFIN: I am not talking about the decisions of the judiciary; I am talking about the principle and the practice of its independence. Parliamentarians often perceive judicial review of government action as criticism or an encroachment into their sphere of power and influence, but it is not always that. This view or reaction, quite often hysterical, demonstrates how fickle some people can be when faced with daily pressures and the ebbs and flows of political life. The practice of condemning the judiciary is not new to Australia, nor to other jurisdictions that have enshrined the separation of powers doctrine. I recently read a document about a country in the Asia-Pacific region which does not pretend to have a separation of powers doctrine or an independent judiciary. It is compelling reading about a summary trial of 22 political prisoners.

In Australia the current criticisms or attacks on judicial independence have reached their zenith - the Wik decision seemed to unleash the vitriol and the venom. The judiciary frequently makes decisions that many of us, particularly parliamentarians, do not like. We feel frustrated by the decisions of the judiciary, but thank God we cannot control the judiciary - and nor should we. Chief justices should not have to defend their role in the current outbreak of judiciary bashing; they should have a defender. Today the Attorney General defended the independence of the judiciary, which is the traditional role of Attorneys General and one founded in sound reasoning. It is sad that the Federal Attorney-General appears to have chosen to abandon that tradition and will no longer defend the independence of the judiciary. If he will not do so, it is up to each and every one of us to do so.



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